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The U.S. Supreme Court heard oral arguments on Jan. 20, 2016, in Nebraska v. Pender, which concerns whether the Omaha Indian Reservation was diminished during the allotment era.

The Court continues to be concerned with the "settled expectations" of non-Indians to be free from tribal authority, regardless of whether the activity takes place on an Indian reservation or is pursuant to a consensual relationship.

Decisions in this case and the other pending Indian law cases this term are expected this spring or early summer before the Court recesses in June.

The U.S. Supreme Court heard oral arguments on Jan. 20, 2016, in Nebraska v. Pender, its third Indian law case of the term. The question presented was whether Congress had diminished the Omaha Indian Reservation when it opened the reservation to settlement by non-Indians in the late 1800s during the allotment era.

This question is usually determined by a well-settled, three-prong test that asks:

Did the language Congress used indicate an intent to diminish the reservation boundaries?

Does the legislative history of the law and the facts surrounding its passage indicate such congressional intent?

How were the lands treated following enactment of the law, including any pattern of settlement?

In most cases involving congressional intent of federal law, arguments focus on the precise language used by Congress. But in Nebraska v. Pender, the argument focuses almost entirely on events that occurred during a 100-year span after Congress passed the statute, illustrating what this case (and the Dollar General case argued in December 2015) is truly about – tribal influence over non-Indians.

Oral Arguments

From the outset, questions from across the Supreme Court bench focused on the current non-Indian character of the land; the lack of evidence that the Omaha Tribe has exercised jurisdiction over this portion of the reservation during a 100-year span; and what tribal authority over the non-Indian residents of Pender, Neb., would entail if the tribe were to prevail in the case. For instance, a number of questions seemed intended to test the limits of tribal authority in terms of law enforcement, the extent of tribal regulatory authority over non-Indians and their land, and whether any state or local authority would be displaced. The tone of questions made it clear that the justices seem to think that the case involves an all-or-nothing choice between the state and the tribe when potential impacts on non-Indians are at stake.

Nebraska's attorney argued that it would be fundamentally unfair to upset the "justifiable expectation" that the land is no longer a part of the Omaha reservation and to subject non-Indians to the authority of a tribal government when they cannot participate in the tribal governmental or political processes.

The tribe's attorney argued that if the statute's text was the only consideration, the tribe would prevail. Additionally, the tribe's attorney focused the Court's attention to the limited impact a favorable ruling would have on the non-Indian residents of Pender. The U.S. Solicitor General's Office argued on the tribe's side against any finding of diminishment, pointing out that even if the reservation boundaries had not been diminished, the tribe has authority over non-Indians only to the extent of an express federal delegation (such as the liquor ordinance at issue in this case) and instances in which tribal jurisdiction over non-Indians is authorized pursuant to one of the two Montana exceptions.

This argument was somewhat echoed by Justice Stephen Breyer, who suggested that it might be better to separate the question of whether it would be fair to subject non-Indians to tribal authority from the question regarding the reservation boundaries and instead remand the case to the lower courts. The lower courts could then determine whether the long passage of time since tribal control and the non-Indian character of the land creates an exception from tribal authority, even within the established boundaries of the Omaha Reservation.

Decisions in this case and the other pending Indian law cases this term are expected this spring or early summer before the Court recesses in June.

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